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Excess Policy Attachment: Policy Language Prevails
One of the most important issues under excess insurance policies relates to when liability attaches to the excess policy. In recent years, attachment disputes have arisen with increased frequency, particularly under excess D&O insurance policies. In many large D&O cases which settle for an amount implicating multiple layers within the D&O insurance tower, the insurers raise various actual and potential coverage defenses and then seek to negotiate with the Insureds a discount off the limits of the implicated excess policies. In that situation, the primary insurer will pay some, but not all, of its limit of liability in exchange for a release from the Insureds, thereby creating a question as to whether liability then attaches to the excess policies despite the primary insurer failing to pay its entire limit.
In many large claims, all of the excess insurers potentially implicated by the large settlement will collectively agree to contribute a portion of their limit toward the settlement even though the underlying insurers have not paid their full limit. The rationale for that consensual arrangement is that it is in the mutual best interests of both the excess insurers and the Insureds to resolve those coverage issues pursuant to a compromise rather than engage in a lengthy and expensive coverage litigation or arbitration proceeding pursuant to which the insurers would pay either nothing or their full limit of liability.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.